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Monday, November 25, 2013

Editor of the Earth Island Journal Jason Mark wrote a story that first appeared in the magazine, and has now been syndicated by Salon. In the article, Mark goes beyond the basic reporting on the back-and-forth of the Chevron v. Donziger trial to explore the broader implications of the oil giant's retaliatory efforts.

First he quotes Donziger's former counsel:

John Keker, a
defense attorney who represented Donziger until the besieged lawyer
could no longer pay his bills, describes Chevron’s efforts as
“scorched-earth litigation.” Here’s how Keker explained Chevron’s legal
tactics when he filed a motion to be dismissed from the case:

“Chevron
is using its limitless resources to crush defendants and win this case
through might rather than merit. There is no sign that Chevron wants a
trial on the merits. Instead, it will continue its endless drumbeat of
motions — for summary judgment, for attachment, to re-instate
long-dismissed claims, for penetration of attorney client privilege, for
contempt and case-ending sanctions, to compel discover already denied
or deemed moot, etc., etc. — to have the case resolved in its favor
without a trial. … Encouraged by this Court’s implacable hostility to
Donziger, Chevron will file any motion, however meritless, in the hope
the Court will use it to hurt Donziger. Dongizer does not have the
resources to defend against Chevron’s motion strategy.”

Mark then turns to some legal scholars for their view on this unprecedented and extraordinary case:

Susan Bozorgi, a Miami-based criminal defense lawyer, told Newsweek that
she worries about what it will mean if Chevron wins: “[RICO] was meant
to be used against the mob. The danger about a case like this is that it
could send a message to a lawyer who wants to take up a cause for an
underdog that Big Brother, the big corporate entity, is going to start
coming after you for criminal conduct.”

UC-Hastings law professor
Roht-Arriaza said to me: “I’m not a RICO expert, but I don’t know of any
case that involves the behavior of companies abroad, where the company
has turned around and sued under RICO. Chevron has been sued before, but
they haven’t done this, even when it looked like things weren’t going
well for them.” She continued: “It’s interesting the number of levels on
which Chevron is fighting back. They are not only doing this, they are
also bringing all of these arbitration cases, basically trying to say
that the Ecuadorian court shouldn’t have brought any judgment.”

Mark quotes a spokesperson from Chevron who says that Donziger and the Ecuadorean villagers whose rainforest lands have been ravaged by the company's pollution are merely "scapegoating" the oil giant. The article concludes:

Of course, scapegoating is in the eye of the beholder. For his part,
Donziger feels he’s the one being hounded. “They are trying to destroy
my life,” he told me. “It’s improper, it’s illegal, and it’s unethical.
They have hired people to follow me. They sued me for $60 billion, and
then they dropped that down to $100 million, and then they dropped that
because they are scared of having a jury trial. And now they are using a
US federal judge, who I think is biased in their favor, and who is
denying my due process rights.”

Then Donziger said, “There is an
intimidation factor. The entire idea behind the entire RICO case is not
to fight wrongdoers. It’s a weapon to intimidate their critics.”

If
he’s right — and Chevron has spent all of this money just to
intimidate people and prevent future litigation — then it leads us to a
sobering conclusion: Even if the judge rules in Donziger’s favor,
Chevron still wins.